I had some warning that trouble was afoot. Mark Napier, the creator of the original The Distorted Barbie website had been informed by his Internet service provider, Interport.net, that they'd been contacted by a lawyer representing Mattel, who asserted that Mark's experimental and conceptual art installation violated their Barbie copyrights, and demanded that he remove the page(s) forthwith. The hapless ISP requested that Mark capitulate summarily "until the matter is resolved."
Well, it's only a matter of time, I thought, before they come after me. Or, rather, more properly, until they come after Enterzone. See, we'd published an earlier version of Mark's Barbie installation in episode 7 of the 'zine, back in June of 1996. They were probably starting with keyword searches, and we had hidden nothing.
But Enterzone doesn't have an ISP. It owns its own domain and is an entirely noncommercial entity. So Mattel's lawyer, William Dunnegan (or more likely an assistant), sent an error-laden letter (on paper, through the mail), similar in tone and structure to the message sent to Mark's ISP (but curiously omitting any reference to copyright, and, instead - fortunately for me - citing 15 U.S.C. section 1125(c), while unsupportedly asserting that a page at Enterzone without doubt unlawfully dilutes the Barbie trademark in violation of said statute), to an incorrect recipient, care of Enterzone, at my home address.
While conferring with lawyers , colleagues, journalists, and first-amendment advocates, I am now considering how to proceed. Several people have urged me to keep a detailed record of the facts and developments of this case, so I will attempt to add daily updates to this page as the process unfolds. I will also provide as many links as possible to relevant resources on the Net so that bystanders reading this can brief themselves on the background and related issues. The letter is dated October 21, 1997.
I read the letter carefully and my gut tells me that we are in the right and that Barbie's lawyers are most likely pursuing a scattershot process of intimidation, to clear the Net of unauthorized Barbie memes, perhaps partially in preparation for the introduction of a Barbie line of computer games for girls, although Mattel has already established a zealous record of protection of their intellectual property.
I've e-mailed Mike Godwin at EFF to ask for his advice, and I continue to informally my various networks of e-mail pals and mailing list acquaintances, partly to get the word out, but more importantly to solicit advice and help. (I can be contacted at xian@ezone.org).
This all reminds me of Disney's sweeping the Net for unlicensed Mickey Mouses a year or so ago. I likened this "cleansing" process to dropping a metaphorical neutron bomb, while speaking on the phone today with Steve Silberman of Wired News.
I looked up the law in question - 15 U.S.C. section 1125(c) - (thank you, Yahoo), and it seems to clearly exempt both noncommercial usage of trademarks and commentary, in section (4), (B) and (C). See for yourself.
Godwin tells me that he is on leave from EFF for the moment, but he gave me a referral (conveniently in e-mail address form), and I have sent the other lawyer the same information. For the moment, I am still waiting to hear back. A friend in Chicago tells me he knows a trademark lawyer who is also a fan of Enterzone. But will he work pro bono? Often, in a legal pissing contest of this type, one side need merely drain the other side of money, free time, or will to keep fighting, in order to achieve victory by default. I don't have much to lose, though, and I believe in freedom of speech, fair use, and art, so attempts to "wear me down" may prove unworkable. Then again, I don't have a real big budget for legal fees!
I've got to run off and do something fun now and forget about Mattel and lawyers, so I'll have to add hyperlinks to this thing tomorrow.
I should have mentioned already that Mark Napier is covering his own interaction with Mattel on a page called Barbie, Mattel and Censorship.
Everyone I've told this story to so far has expressed the same gut reaction: "Isn't that art?" or "Isn't that fair use?" But what do my secular humanist friends know? Others have started mailing me citations of draconian trademark or copyright enforcements or told me anecdotal stories about lascivious Barbie photo spreads that have been squelched. One such example was supposedly in Urban Desires, another webzine (but they take ads and are hence commercial, or did they just back down?).
A freelance journalist friend, Garret Keogh (he also publishes his own 'zine, The Lard Enquirer), tells me he pitched this story when the heat came down on Napier last week to both Wired News and Netly News without much success. He's frustrated that now in-house editorial staff from both publications have expressed interest. I'll be trying to contact a New York Times journalist I know over the weekend to see if they might want to follow this story as well. Another friend suggested I contact the ACLU.
Author Martha Conway, who's been following this case since Napier's ISP was contacted, has sent me an article about this situation, entitled Barbielust.
I just re-read Garret's pithy piece on the Napier/Interport affair in the Lard Enquirer and realized that I did not invent the title "Barbie Chronicles" but subliminally plagiarized it from another site recently shut down by Mattel. Out of respect (and so as not to confuse or provoke anyone), I've re-christened this site The Daily BarbieTM. Enjoy!
Martha's article about Barbie has been picked up by The Birdhouse and published there (with a beautiful design), as Mattel to Barbie: Play Nice or Don't Play at All.
I spoke with a lawyer friend who has some experience with intellectual property issues and he offered to help me draft a letter of reply to Mattel's lawyer. I think it's important not to allow the assertions in the letter I received to go unchallenged in writing. I want to make it clear that I don't believe Enterzone is diluting the Barbie trademark.
Another friend wrote to suggest that I set up a message board area as part of this site, so people can discuss the issues here in public, if they wish to. I may do that, although I don't want to turn the maintenance of this page into a full-time job (any more than it is already). The ironic thing is that I've got a daily-journal website idea in the works to be launched later this week, and here I am keeping a journal, of sorts, on the Web already. If I get a a chance tomorrow, I'll check Philip Greenspun's free discussion-group service for web pages and see how it works. I'm not sure if it's ad-supported, and if it is, whether that might affect the noncommercial nature of this page. More on this as I figure it out. (I have since set up the comment area.)
As this page grows, I may have to work to make it more navigable. I've already added that link at the top that enables anyone to jump directly to the latest entry, but maybe what I need to do is add subheadings to each new topic? I've been generally devoting a paragraph to each issue or development, but this page may be easier to use if the topics are articulated more clearly.
A correspondent gave me the e-mail address of Gabrielle Shannon at Urban Desires, and I wrote her to ask her the facts of the Barbie/photo-essay/censorship situation she went through with that publication a few years back. (I'm curious about whether they gave in based on the merits of the case or because they wished to avoid a battle.)
Finally, I dropped by
Well, I couldn't remember Philip Greenspun's domain name, and poked around Photonet.com before I got to photo.net, which gave me the Swiss AI server at MIT, where greenspun's empire lives. From there I got to his personal page, and then a site map, and finally, Loquacious, his comments server. Having set up a realm there for this page, I will now attempt to use the service to enable you to add comments to this page.
Finally got through to the ACLU by phone, but I was barking up the wrong tree. They only get involved in Supreme Court issues, it seems. They attempted to give me some informal referrals but I've got a lot of other leads to follow up. Essentially, they said I need a trademark lawyer. I guess there isn't much of a "protecting freedom of speech from limitation by corporations" movement.
Seems like Steve Silberman may run a piece in Wired News. We spoke several times by phone today and he was trying to get in touch with Napier as well. Netly opted not to do the story. Not sure why. Who knows with this kind of thing? I'm starting to worry a little about my thus far impregnable host machine. It may be time to move the domain to a machine with an explicit commitment to freedom of expression on-line. I've been backing up Enterzone lately, and it's around 100 meg uncompressed and about 50 or so compressed. If anyone have a quarter-gig lying around unused and a commitment to press freedoms, please mail me about hosting the ezone domain, at least until this blows over.
For now, I've tried to come up with one summary head for each day. We'll see how long that structuring method works.
I sent a copy of the letter, typed by me (my scanner is still choking on the letter), the facts of the case, the law in question, and a draft of a letter I'd like to send in reply to my lawyer friend. He will review the issues and consider advising me on the wording of the letter. I'd include the text of my message here, but I don't think my lawyer friend would approve.
Silberman wrote an eloquent inquiry into Mattel's tactics concerning discussion of its products and intellectual property for Wired News. For some odd reason, my ezone mailing address is bouncing today. If you're trying to reach me by e-mail, try xian@pobox.com.
A friend mentioned the California campaign against smoking that highjacked the Marlboro Man image for the "Bob, I've Got Emphysema" billboards, which led another web artist friend of mine to send the Adbusters address.
My lawyer friend has vetted my response letter, so I guess I need to type it up and send it out. Who know, maybe we can disagree as reasonable people and that will be the end of it. Maybe I'll flap my arms and fly to the moon. A lawyer at the firm Mike Godwin pointed me to told me that they were already involved in a pro bono trademark case and could not afford to take the lead on another one at this time. He offered to recommend some additional referrals, so the trail of legal assistance has not gone cold yet. Either way, it appears I need to study McCarthy (no relation) on trademarks.
I e-mailed the Times journalist I know. We'll see if she's interested in the story. I also tipped off Netsurfer Digest, one of my favorite Web tip sheets.
I need to add some more pointers to the various articles and references people have been sending me.
My friend Griffin writes:
Newsflash: Mattel censors Australia over use of the term 'barbie.'
This tip just in from trademark lawyer Ronald McDonald, "Mattel has patiently sent out warnings and even dropped flyers from airplanes at the last Great Outback Barbecue, which is apparently referred to as the Great Outback Barbie. Dauntless, the organizers have persevered with their flagrant impingement upon Mattel's intellectual property. There can be no doubt that this dilutes my client's trademark, since everyone knows Barbie's back is not large, and certainly not out-sized; nor are we amused at the implication of Barbie performing in some 'great' fashion while out back, quite possibly out of her parents' sight. We will act strongly to curb this latest perversion of Barbie's wholesome mythology."
Another friend writes: "I dunno if you're talking about publishing quotes sent you in email but if it's input from the page I'd say it's OK to use, link to my barbie too if you want, it's no use if no one sees it... why not put up a guest/comments book for input?ø?" Still another friend offers: "My stuff is hosted by a friend, not an ISP. I don't know if he is willing to stand up to Mattel, but we can ask." I asked him to look into it. I'm looking for whatever help I can get.
Just received an anonymous missive called Fighting Censorship with a Meme.
I taped an interview at KPFA in Berkeley today, ostensibly for an unrelated matter (promoting the Coffeehouse book), and managed to mention my censorship problem with Mattel. The host of the show seemed very interested and thought that a lot of women might want to help prevent Enterzone from being silenced over what is at least in part a body-image issue. Maybe that will help bring in the strong host I may need to weather this storm.
I still haven't managed to scan the letter, but several people have asked to see it, and I typed it up for an e-mail message to my lawyer, so I may as well attach it here.
I did a little research at the Nolo Press outlet in Berkeley after my interview today, brushing up on my trademark law. Still haven't found the McCarthy text, but nothing I've seen yet has changed my assessment of the case. I also picked up a guide to setting up non-profit corporations in California. Perhaps if Enterzone were set up as a standard non-profit, my personal belongings would be a little more safe?
I feel it's important to clarify that there are two Distorted Barbie cases going on right now. One involves the installation in Napier's gallery site at Interport. The other involves his article in Enterzone, an excerpt from an older version of the Barbie material at his site. Interport seems to be leaning towards removing Mark's content or having him change it. Mark has made some changes already (using the word Barblie and altering the artwork), but they have not satisfied Mattel's lawyer.
Enterzone, on the other hand, has made no changes to the original installation (it's been available unchanged on the web since June of 1996), and we have no plans to change it or remove it. This is not to say that I am not reasonable and open to persuasion. If the Mattel lawyer can demonstrate to my satisfaction how it is that some aspect of Enterzone does in fact dilute the Barbie trademark, I'd be happy to negotiate some solution. I just don't believe that there is any infringement.
A sympathetic friend writes: "i still can't let go of the barbie thing. my latest thought is that you should do a "barbie" issue of enterzone - appropriately hyped - leading your audience to think that the issue is a celebration of america's favorite doll (ok, maybe second favorite: g.i. joe captures the american spirit a bit better imho). what they would get, instead, would be an issue devoted to the life & times of klaus barbie aka the butcher of lyon..... "
Thanks to everyone who's sent in corrections or noticed typos. I fixed the bad return link on the page containing the trademark dilution law, and I fixed some typos and misleading addresses in the Barbie Meme circular.
I wonder if I should start trying to maintain a coherent list of links that have been named on this page? I guess for now the page itself will have to serve. Just not sure everyone who can help me will be willing to plow through all this prose.
Yet another friend writes:
A copy of Esther Dyson's book - Release 2.0, a design for living in the digital age arrived on my desk today. I'm sure we all have our feelings about Ms. Dyson and her views. However this section caught my eye:"The person is the living face a company presents to the world. For example, take Jennifer Warf, who has run a Barbie website for some years. Other Barbie fans came upon the site, and pretty quickly it became an active center for discussions about Barbie, trading costumes and even dolls. The site eventually attracted attention from Mattel itself, and an enthusiastic Warf hinted that she might like a job with Mattel when she graduated from Indiana University. But instead of hiring her, Mattel’s legal department wrote her a letter with warnings about copyright infringement. She had redone the site to remove all Mattel's content; she is using photos of her own dolls instead.
"Unaffiliated with Mattel, she is now doing this as a labor of unrequited love. Of course, Mattel’s version of the story focuses on its need to protect its image and its intellectual property, but it seems to me they have missed an opportunity. Unless, of course, they’re secretly hoping that she’ll just continue to promote their products for free
Hmmm....
Well, as alluded to earlier, I've been planning to start a daily web journal on my birthday (tomorrow, October 30) for the past few weeks (the idea'd been percolating for a while before that). I will spend tomorrow getting a first item written, but naturally almost all my time's been taken up with this impromptu Barbie journal. Then I'm heading up to Point Reyes for two days for some R & R and a quiet birthday celebration, but I'll be writing in my journal and I'll update both sites when I'm back in circulation.
Several friends have mentioned the Dutch band Aqua and their Barbie Girl song, another target of Mattel's trademark rangers, but a more legitimate one, to be sure, as it is a commercial product (a song, a record) trading on another commercial entities trademark. Need I repeat: "apples and oranges"?
Still no luck finding (1) a free host or (2) a host that will resist censorship before the case is settled. I am open to suggestion.
A zine called Urban75 (bonk-a-Spice-girl-applet was their big hit) has picked up the Lard Examiner as a mirror, so the Barbie squibs there have got additional legs through that zine's large readership. Remember kids, this is a test, a test of the emergency censorship response system.
Napier filled me in on what he's been up to. He'd been so wrapped up in his own problem he hadn't even realized Enterzone had been targeted as well until he read it in Steve Silberman's article in Wired news. I popped back to his Barbie, Mattel, and Censorship page to see if he'd been updating it, and sure enough, it had a new arresting introductory presentation and a link to a lucid discussion of the issues surrounding the copyright question. Mark's spoken to Volunteer Lawyers for the Arts, who tell him he's too well off for them to help him (but not wealthy enough to afford a lawsuit vs. Mattel). They also think he has a good case and could find legal assistance. That's what they're telling us, but we're still groping around for the right people.
Napier also sent me a good lead for a possible host: Fangz.com, a noncommercial site that functions as a sort of free library service from a non-profit ISP.
Well, Joey Anuff picked up the Barbie Meme aspect of this story and ran with it in the NetSurf section of HotWired today. His link to this page seems to have drawn a little life into the bulletin board. Hits at the Barbie page in Enterzone 7 are way up, especially for such a usually slow weekend.
A writer to the bulletin board points to an archived newspaper article from Idaho Press about the Trailer Trash Barbie case of a year ago. While the competing off-color doll products may have violated copyrights and trademarks, I wonder if this article in the paper and on the web is free to comment on the same issues: namely the construction of female self-image in this society and the effect of such popular icons as the Barbie doll on the self-esteem and possibly even the eating habits of a large number of the girls in the U.S. and perhaps elsewhere in the world.
--xian